# Unit ed Sta tes Cou rt of Appeals
For the Seventh Circui t Chic ago, I lli nois 60604

Arg ued February 28, 2013 Deci ded August 28, 2013

Before

D A N I E L A

. MA N I ON

, Circ u it Ju d

ge
MI C HA E L S

. K

A N N E, Circ u it Ju d

ge J OHN D A N I E L T I ND E R , Circ u it Ju d

ge

No. 12-2834

COREY H., et al., Plaintiffs-Appellee s , v.
CHICAGO BO ARD OF EDUCATIO N,

Defen dant-Appellant

. Appeal from the United Stat es Di stric t Court for t he Nort hern Di stric t of Illi noi s, Eas ter n Di vis i on.
No. 92 C 3409

Robert W. Get tleman, Judge

.

O R D E R

I . Backgro und

Becaus e this li tigati on has been ongoin g for ov er t wenty year s, we only bri efly recount t he underlyi ng facts and p ro cedural posture. In 1992, a gr oup of di sabled students w ho att ended various Chi cago Publi c Schools (“CPS”, wh i ch w e use to re fer to NONP RECEDENTIAL DIS P OSIT ION To be c ited only

in acc ordanc e with Fe d. R. App. P. 32.1No. 12-2834 Page 2

the Chi cago Boar d of Educ ation as well) fi led a putative clas s acti on lawsu i t agains t the Illi noi s Stat e Boar d of Educ ation (“ISBE”), CPS, and other g ov ernmental entiti es. Among t he num ero us c lai ms that the plai nti ffsrais ed was the allegati on that t he ISBE was respons ible for CPS's di stric t-wi de practic e of assi gni ng di sabled s tudents to sch ools and clas sroo ms b ased solely on their di sabi li ty classi fi cati ons, in violati on of the Indi vidu als w i th Di sabi li ties Educ ation Act (“IDEA”) . The IDEA requi red t he var i ous gov ernmental entiti es to educate chi ldren i n the least restr i cti ve env i ro nment (“LRE”) accordi ng to their needs. Of the more than 500,000 students then enrolled in CP S, at least 10% had been c lass i fi ed by CPS as havi ng di sabi li ties

. The cas e was ini tiall y assi gned to Judge Leinenweb er, who deni ed motions to di smi ss an d certifi ed the class, whi ch w as defined as: “all chi ldren who are enr olled i n [CPS] and who are o r wi ll be cl assi fi ed as havi ng a di sabi li ty by [CPS], and who are there fore subject to [CPS’s] and ISBE’s ill egal practice and poli cy of fai ling to educate chi ldren wi th di sabi li ties ... .” The partiesatte mpted to set tle the case, and CPS negot i ated a comprehensi ve sett lement agr eement that assumed the clas s defini tion above and was approve d by the di stric t courti n February 1998. The CPS consen t decree commi tte d CPS to i nsti tuting a seri es of refor ms an d admini stering a prog ram called the “Educ ation Connecti on,” whi ch w ould prov i de resources to approx i mately o ne-thi rd of i ts sch ools to bri ng them i nto compli ance w i th the IDEA.

Set tlement nego tiati ons wi th the IS BE, however, fell thr ough and the part i es proceeded t o a bench trial . The di stric t court found in favor of the plainti ffs and held that t he ISBE v i olated t he IDEA. It also o rder ed the IS BE to submi t a plan detailing how i t would bri ng CPS in to complian ce wi th the law. In response to the di stric t court 's judgment, in J une 1999 the ISBE ente red into a consent decree wi th the plain tiffs in whi ch i t out li ned the steps that it would take to cor rect CPS' s noncompl i ance w i th the IDEA and to monitor CPS' s fu ture compli ance.
The cons ent decrees mandated: (1) that the di stric t court would over see the consent decrees un til J anuary 2006; (2) that the dis tr i ct court would appoin t a Mo ni tor 1 to o ver see the i mplementati on of the decree s and c ompli ance w i th i ts ter ms; ( 3) that the parties w ould establi sh di stric t-wi de tar get s and b enchm ark s by whi ch CP S could show

The or igi na l c ourt -appo in te d Mon itor wa s J udge Jos e ph Sch ne ide r, a j udge on th e 1 Cir cuit Cour t ofCook Coun ty. A fte r h e r e tir e d in 200 3, th e cour t appoi nt e d Ka th le e n Yan ni as as M oni tor

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i t was compl yin g wi th the decrees; and (4) that i f CPS schools were unable to meet establi shed target s, the schools could request exemptions fro m those tar get s. Although t he parties entered i nto t he consent decrees in goo d fai th, the par ties were unable to agr ee upon a numb er o f i tems related t o the decre es’ i mplementati on. Consequently, the M oni tor formulated the dis tr i ct-wi de tar get s and determi ned that, begi nning on June 1, 2005, the maxi mumpercentage of students wi th di sabi li ties i n any sch ool in the CPS system could b e no gr eater than 20% of the school's tot al student populati on. The Monitor also stat ed that t he ISBE could gr ant wai ver s to schools from the 20% cap. CPS obj ected to the di stric t court, arg uing that t he 20% enrollment cap was
err oneously based on the Mo ni tor 's inconsi stent use of nati onwi de statis tic s and defini tions of ter ms u sed to dete rmi ne IDEA compli ance. Bu t inan order i ssu ed on Februar y 17, 2000, the dis tr i ct court r ejecte d CPS’s arguments and concl uded that the Monitor did not abus e her dis cretion by establi shing the 20% cap. For fi ve y ears, CPS sought no wai ver s from the Mo ni tor 's targ ets. But on June 1, 2005—the deadline by whi ch all CP S schools were required to comply wi th the 20% enr ollment cap—CPS sent a lette r t o the M oni tor and the ISBE seeking wai ver s from the 20% cap for 96 schools.

As a result of the r equest, and in consi derat i on of var i ous other di ffi culti es CPS had in meeting di stric t-wi de tar get s, wh en the Mo ni tor repo rt ed to t he di stric t court on the pro gr ess of the cons ent decree, she recommended exte nding the t erm the dis tr i ct court would ov ersee the consent decrees to the end of the 2009–2010 school year . The di stric t court adopted t he Monitor' s deci si on (ove r o bjections by CPS) and both ext ended i ts jurisdi cti on ov er t he decrees unti l Septe mber 1, 2010, and confi rmed that the maxim um percentage of dis abled studen ts allowed per school remain ed at 20%. CPS appealed the di stric t court 's order to t hi s court, assertin g that the court abus ed i ts di screti on by re affi rmi ng the 20% enr ollment cap. InCorey H. v. Board o f Educ. of Chi. , 534 F.3d 683 (7th Cir. 2008), w e di smi ssed CP S’s appeal, holdi ng that t he challen ge was not ripe bec ause i t was too e arly fo r us to ent ert ai n any challen ge t o the 20% enrollment cap, as CPS could s tillseek and obtainwai ver s for the schools that could not comply wi th the cap. Id. at 689.
In 2010, the dis tr i ct court det ermin ed that t he intere sts of all parties and the publi c requi red t hat both consent decrees should termi nate. The parties agreed, and theNo. 12-2834 Page 4

court o rder ed that t he consent decree for t he ISBE would ter minate on August 1, 2011, and the consent decree for CPS o n September 1, 2012. With the consent decrees ter minated, the o nly remain i ng acti on i s for the M oni tor to file the final repor t detailing her fi ndings of the agenci es’ compli ance w i th the decrees. Then, just a few months before t he consent decree for CPS was set to t ermin ate, CPS filed a m otion wi th the di stric t court to decer tif y the o riginal “Corey H.” clas s and vacate the consent decree i t had agreed t o in1998 and also in 2010. The di stric t courtdeni ed the motion and CPS appealed to t hi s court. On appeal, CPS contends that the dis tr i ct court er red by denying i ts motion on the gr ound that our deci si on i n Jamie S. v. Milwaukee Pub. Schs. , 688 F.3d 481 (7th Cir. 2012), mand ates that we decert i fy the class and vacate the consent decree. We need not consi der CPS’ s arguments, however, because thi s cas e i s moot. We hav e no j uri sdi cti on to e ntert ain CPS’s motion, and thi s appeal i s therefor e di smi ssed.

II . Di scu ssi on
A federal court 's juris di cti on i s li mi ted to casesthat pr esent a li ve contr ov ersy. See U.S. C O N S T . art . III , §2. The cons ent decree at i ssu e here ex pi red o n September 1, 2012; thus, there is no longer a consent decree for us to v acate. Sinc e ther e i s no decree, 2 there i s no contro ver sy, and the case i s moot. See, e.g. , United S tat es v. Brenn an , 650 F.3d 65, 91 (2d Ci r. 2011) (noting that any is sues reg ardin g sett lement approv al were moot becau se the settlement ag reement had alre ady expired under i ts own terms); Hallett v. Morga n , 296 F.3d 732, 749 (9th Cir. 2002) ( holdi ng that a mo tion to ter minate a consent decree was moot becaus e the challenged prov i si ons of the decree had expired); Taylor v. United S tat es , 181 F.3d 1017, 1022 (9th Cir. 1999) ( en banc ) (holding that a mo tion to ter minate a consent decree was “moot” becaus e ther e was “n o ... consent decree left t o be terminated”).

Con se nt de cr e e s ar e con str ue d str ict ly to pr e se r ve th e bar gain e d-f or posit ion s ofth e 2 par tie s, an d cour ts h ave anaf fi r mati ve duty to pr ote ct t he in te gr ity o f th e ir de cr e e s an d e ns ure th at th e te r ms ar e e ff e ctuate d. See Cle vel and Fir ef igh te rs fo r Fa irH ir ing Pra cti ces v . Cit y of Cle vel and, 669 F.3d 737, 743 (6 th Cir . 201 2) (K e ith , J. , dis se nt in g) ( cit in g Wi ll ia ms v. V uko vich , 720 F.2d 9 09, 9 20 ( 6th Cir . 198 3)) . For th at r e ason, w e str ict ly e nf or ce th e te r min atio n of the de cr e e on Se pte mbe r 1, 2 012.No. 12-2834 Page 5

Even if thi s cas e were notmoot, we would n ot g rant t he relief CPS seeks. As the di stric t court noted, o ver the past twenty -one year s, during whi ch the parties i nvested thousands of h ours and spent tens of mi lli ons of dollars i n an eff or t to refor m the CPS speci al educati on system for t he benefi t of dis abled ch i ldren, no one—no t the plainti ffs, ISBE, o r CPS—has ever complained about the class certifi cati on defini tion. Why, at this late date, t he CPS would try to o bli ter ate t wo decades’ w or th of effort i s mysti fyi ng to us. The CPS just r eaffi rmed i ts commi tment to the decree in 2010, an d nothin g has occurred si nce then to suggest t hat complyi ng wi th the t erms of the decree had changed i n any meaningful w ay. Eve n i f ci rcums tances had changed, however , CPS i s no longer under any burden, sub stanti al or o therwis e, to comply wi th any obligati ons i t assum ed under the expired decree. As we noted abov e, the only remain i ng obli gation i s for the Monitor, who wi ll fi le her r epor t at some po i nt presumably in the near future. Thus, 3 even if thi s cas e were not moot, no justifi cati on exists f or vacating the decree.

III . Conclus i on
For the for ego i ng reason, t hi s appeal i s moot and i s therefor e DISMISSED

.

At o ral ar gument, one of t he atto rneys for CPS suggested thatthe school system 3
was c oncerned that informati on contain ed i n the Mo ni tor ’s pending repo rtmi ght prov i de gr ounds f or future lawsu i ts. That may well be true, but as w e have held i n the past, a vague o r nebulous fear is i nsu ffi ci ent to create a case or contro ver sy. See In re Olde Prairie Block Owner , LLC, 515 Fed. Appx. 590 (7t h Ci r. 2013).